Filed: Mar. 31, 2016
Latest Update: Mar. 02, 2020
Summary: 12-2219 Liu v. Lynch BIA Laforest, IJ A094 917 583 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTA
Summary: 12-2219 Liu v. Lynch BIA Laforest, IJ A094 917 583 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTAT..
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12-2219
Liu v. Lynch
BIA
Laforest, IJ
A094 917 583
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 31st day of March, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
PETER W. HALL,
Circuit Judges.
_____________________________________
HONG LIU,
Petitioner,
v. 12-2219
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael Brown, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Principal Deputy
Assistant Attorney General; Erica B.
Miles, Senior Litigation Counsel;
Victory M. Mercado-Santana, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Hong Liu, a native and citizen of China, seeks review
of a May 14, 2012, decision of the BIA affirming an
Immigration Judge’s (“IJ”) February 1, 2011, denial of
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Hong Liu, No.
A094 917 583 (B.I.A. May 14, 2012), aff’g No. A094 917 58
(Immig. Ct. N.Y. City Feb. 1, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, i.e., minus the
IJ’s determination regarding Liu’s doctrinal knowledge of
Falun Gong. Xue Hong Yang v. U.S. Dep’t of Justice, 426
F.3d 520, 522 (2d Cir. 2005). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B);
Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008)
(per curiam).
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For applications, like Liu’s, governed by the REAL ID
Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on “the inherent
plausibility of the applicant’s or witness’s account.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
64. “[W]hen an adverse credibility finding is based partly
or entirely on implausibility, we review the entire record,
not whether each unusual or implausible feature of the
account can be explained or rationalized.” Ying Li v. BCIS,
529 F.3d 79, 82-83 (2d Cir. 2008).
The agency found Liu’s testimony implausible insofar as
he stated that he had supported Falun Gong in China since
2001, and had practiced Falun Gong in the United States for
four years at the time of his merits hearing, yet he only
knew the first of the five sets of exercises. This finding
is supported by the record. Liu was asked why he learned
only one set since 2006, and Liu responded that he learned
Falun Gong by watching a DVD; however, when asked if all
five exercises were on the DVD, Liu responded they were.
Liu asserted that he had been involved in Falun Gong for
over a decade, had photographed Falun Gong practices for
instructional materials, and had been practicing weekly for
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four years before his hearing. Thus, his lack of knowledge
about the five sets and how to practice Falun Gong casts
doubt on his commitment to Falun Gong and whether he was
actually arrested in China on account of his “support” of
Falun Gong.
In his brief, Liu argues that the IJ had an
“affirmative duty” to develop the record, and the IJ should
have questioned him in order to secure more detailed
information about his knowledge of Falun Gong. While Liu
relies on Cao He Lin v. U.S. DOJ, this case actually
undercuts his claim, as it provides that an IJ “‘may wish to
probe for incidental details,’” under certain circumstances
not applicable here. 428 F.3d 391, 400(2d Cir.
2005)(emphasis added) (quoting Jin Shui Qiu v. Ashcroft,
329
F.3d 140, 152 (2d Cir. 2003)).
As Liu’s testimony showed minimal knowledge of the
practice of Falun Gong and cast doubt on his involvement in
both China and the United States, the agency properly
considered whether Liu had corroborated his claim. 8 U.S.C.
§ 1158(b)(1)(B)(ii). “[W]here it is reasonable to expect
corroborating evidence for certain alleged facts pertaining
to the specifics of an applicant’s claim, such evidence
4
should be provided.” In re S-M-J-, 21 I. & N. Dec. 722, 725
(BIA 1997); see also Chuilu Liu v. Holder, 575 F.3d 193, 196
(2d Cir. 2009). The agency did not err in faulting Liu for
failing to corroborate his Falun Gong practice. Liu had
specifically requested, and was granted, a continuance to
call a witness, but failed to do so. Thus, Liu offered no
evidence, apart from his testimony, that he practiced Falun
Gong in the United States.
In addition, the agency considered the lack of evidence
regarding the incidents that allegedly occurred in China.
While Liu argues in his brief that the agency erred by
faulting him for not authenticating documents pursuant to 8
C.F.R. § 287.6, a review of the agency decisions reveals
that neither the BIA nor IJ required authentication pursuant
to this provision. Rather, the agency attributed diminished
weight to letters from Liu’s father, girlfriend, and friend
in China. There is no error in that. The witnesses were
not available for cross-examination, and the weight accorded
to documentary evidence lies largely within the agency’s
discretion. Xiao Ji Chen v. U.S. DOJ, 471 F.3d 315, 342 (2d
Cir. 2006); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215
(BIA 2010) (giving diminished weight to letters from
relatives because they were from interested witnesses not
5
subject to cross-examination), rev’d on other grounds by Hui
Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). In
addition, all three letters are undetailed and provide no
information about whether authorities continue to seek out
Liu. Thus, they are generally unhelpful to Liu in meeting
his burden of establishing a well-founded fear of future
persecution.
As Liu has failed to establish his eligibility for
asylum, it follows that he cannot satisfy the higher
standard for withholding of removal or CAT relief. Paul v.
Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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